Legal Challenges to SB5 in Texas

June 26th, 2013

(I am assuming Sb5 passed. As of 12:18 a.m. CDT, that seems to be the case). It was widely expected that the proposed abortion legislation in Texas would be challenged on constitutional grounds under Casey, and its progeny. That suit will be filed in District Court in Austin once Perry signs it.

But another question that will no doubt be raised in state court is whether the vote was proper. From my vantage point of watching the live-stream, the vote began after midnight. AP reports that the voting began before midnight.

The Republican-controlled House voted for the bill while hundreds of protesters screamed from the gallery. Reporters and Democrats saw the voting begin after midnight, but Lt. Gov. David Dewhurst said it began just before.

Ian Milhiser notes that the Texas Constitution provides:

Sec. 40.  SPECIAL SESSIONS; SUBJECTS OF LEGISLATION; DURATION. When the Legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the Governor calling such session, or presented to them by the Governor; and no such session shall be of longer duration than thirty days.

This suggests that any challenge to the law would be jurisdictional. That is, by passing a law ater the session was completed, the bill would be a nullity.

I was able to find one case on point, Jackson v. Walker, 121 Tex. 303, 49 S.W.2d 693 (Texas 1932). (It’s on Westlaw, but doesn’t seem anywhere online for free). There seemed to be some sort of action to compel the Land Commissioner to file some applications. The Land Commissioner replied that the application should not be filed because of some act of the Legislature.

The petitioner challenged the law, saying that the Governor, in calling the special session, did not state in his proclamation  that this was a subject to be designated for voting.

Counsel for relator urge that the Governor, in his proclamation, calling the Third Special Session of the Forth-First Legislature, did not submit for their consideration the question of taking river beds and channels off the market, as was attempted to be done in chapter 22. Therefore the enactment of that act was in violation of article 3, s 40, of the Constitution, which reads as follows: ‘When the legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclaimation of the governor calling such session, or presented to them by the governor; and no such session shall be of longerduration than thirty days.’

After stating that the court would not scrutinize all aspects of the Proclamation, the court found that because everything about the act looks valid, they court won’t question its legality.

However, it is not necessary to decide whether or not the Governor, in his proclamation convening the Third Called Special Session of the Legislature, or thereafter during such session, submitted to them this precise subject for legislation. The act in controversy is regular upon its face. It is regularly and properly signed by the President of the Senate and the Speaker of the House of Representatives, and duly authenticated by the officers of each house. It also bears the date when received in the Governor’s office and in the office of the Secretary of State. No question is raised about these facts.

Though certainly questions will be raised about SB5, the law, if signed, will probably have all the formalities of a duly enacted law.

The question whether the validity of a statute, duly certified, approved, enrolled, and deposited in the office of the Secretary of State, can be impeached by a resort to the proclamation of the Governor or to the journals of the Legislature has been long controverted, and the decisions upon this question are conficting. In several of the states of this Union, it is held that the courts will go behind the authenticated statute and *307 ascertain from the proclamation of the Governor and the journals of both houses of the Legislature as to whether or not the law is valid. This is a very interesting question, but to review the decisions of the various courts bearing upon this question would prolong this opinion beyond its proper length.

 The court says that the rule in most states is that courts will not second guess whether the law was validly passed in this context:

The rule has long been established in this state that a duly authenticated, approved, and enrolled statute imports absolute verity and is conclusive; that the act was passed in every respect as designated by the Constitution; and that resort may not be had to the proclamation of the Governor and to the journals of the two houses to invalidate the law. This rule has been followed by the various courts of this state.

The court even rejected a lower court opinion that said that a law that went beyond the scope of the special session was not valid.

The case of Manor Casino v. State (Tex. Civ. App.) 34 S. W. 769, is cited as authority that the Constitution prohibits the Legislature in special session from legislating upon subjects not presented to it by the Governor in his proclamation, or thereafter submitted during such session. This case does sustain that contention, but it did not reach the Supreme Court, and therefore was not approved by this court. The courts of this state have not followed the rule announced in that opinion. On the contrary, they have held the very opposite. That case does not announce *308 the rule which prevails in this state, and is not an authoritative decision upon this question.

In other words, the court won’t second-guess it.

It will be observed that the rule announced by the courts that a law, regular upon its face, could not be impeached by resorting to the proclamation of the Governor, or to the journals of the two houses of the Legislature, has been in force in this state for more than fifty years. It has become the public policy of this state, and has been recognized by the three departments of our state government. It is well known that by reason of this public policy many laws have been enacted and are now in force, that rights have been established and acquired thereunder, and, in the face of this long custom or rule existing in this state to hold now to the contrary, would certainly prove disastrous and would create a condition in the affairs of our state government that would almost be irreparable.

I’ll have more commentary soon.

Update: I found several other criminal cases where defendants challenge convictions because a law passed during a special session was outside the scope of the Governors proclamation. These challenges are consistently rejected.

Maldonado v. State (1971):

Appellant states that the civil courts of Texas are committed to the proposition that they will not go behind the record approval of the act passed at a special session of the Legislature to ascertain that the subject matter was in response to the subject designated or presented by the Governor in accordance with Article 3, Section 40, of the Texas Constitution.
In this he is correct. One of the leading cases is City of Houston v. Allred, 123 Tex. 334, 71 S.W.2d 251 (Tex.Com.App.1934). This was followed in Waggoner Estate v. Gleghorn, 370 S.W.2d 786 (Tex.Civ.App.1963, rev. on other grounds, *28 Estate of Waggoner v. Gleghorn, 378 S.W.2d 47, Tex.Sup.Ct.1964). See 53 Tex.Jur.2d, Statutes, Section 85, page 128, and 12 Tex.Jur.2d, Constitutional Law, Section 42, page 385.
We will not look behind the engrossed bill to see if the Governor issued a proclamation including the subject matter of the enacted legislation.1 All cases holding to the contrary are overruled.

Reyna v. State (1972):

At the outset, appellant complains the court erred in failing to quash the indictment contending that the 1968 Amendment to Article 483, supra, (Acts 1968, 60th Leg., 1st C.S., ch. 3, s 1, p. 11, effective July 19, 1968), was unconstitutional as violative ofArticle III, s 40,1 and Article IV, s 8,2 of the State Constitution, Vernon’s Ann.St. The particular contention is that the 1968 Amendment was enacted at a special session and that the subject matter of the statute exceeded the scope of the Governor’s Proclamation convening the special session thereby contravening the aforementioned constitutional provisions.
We do not understand the appellant to contend that the 1968 Amendment, regular on its face, was not duly signed, authenticated, approved and filed but merely exceeded the scope of the Governor’s Proclamation.
In City of Houston v. Allred, 123 Tex. 334, 71 S.W.2d 251, at 257, the Supreme Court of Texas wrote in 1934 that
‘. . . It is now the settled law of this state that the courts will not go behind such a record to ascertain if the subject-matter of legislation enacted by a special session of the Legislature was in response to a subject designated by the Governor’s proclamation calling the special session, or otherwise presented by him. . . .’
Accord: W. T. Waggoner Estate v. Gleghorn, 370 S.W.2d 786, at 789 (Tex.Cr.App.—Eastland 1963; rev’d on other grounds, 378 S.W.2d 47 (Tex.1964)); 53 Tex.Jur.2d Statutes, s 40, pp. 72—73 and authorities there cited. See also 13 Tex.L.Rev. 224.
Only recently in Maldonado v. State, 473 S.W.2d 26 (Tex.Cr.App.1971), it was recognized that this rule had long been followed by the civil courts of this state and it was adopted as the rule in criminal cases overruling all cases to the contrary. We adhere to that decision.
Update (1:13 a.m.): I found a 1935 Texas Law Review note on this topic: W.W.F, Constitutional Law-Statutes-Acts Passed at Special Session, 13 Tex. L. Rev. 224 (1935).
The City of Houston sued for mandamus to compel the Attorney General to approve bonds issued under authority of art. 1109a,TEX. REV. CIV. STAT. (1925), as amended by Acts 43rd Leg., 1st C.S. (1933), H.B. 212, c. 36, the subject matter of which bill had not been submitted by the Governor as required in Art. III, § 40, of the Texas ConstitutionHeld, that the court would not go behind the approval by the Governor of a properly enrolled bill to see if the subject matter came within the Governor’s proclamation or was otherwise presented by that official. City of Houston v. Allred, Attorney General, 71 S.W. (2d) 251 (Tex.Comm. App. 1934). …
The view of the principal case was first expressed in Jackson v. Walker, 121 Tex. 303, 49 S.W. (2d) 693 (1932). In three decisions by Texas courts of civil appeals the courts without any discussion refused to go into the question of submission of the subject matter of the bill by the Governor.
The note goes on to talk about cases that predate Walker from the Court of Criminal Appeals, which seem to have been abrogated (as noted in  Reyna above).
Update: Commenter dsguenth below highlights another case from the Texas Supreme Court, Texas Professional Educators v. Kirby, 788 S.W.2d 827, 1990 Tex. LEXIS 25, 33 Tex. Sup. Ct. J. 275 (Tex. 1990):
The trial court expressly held that the “enrolled bill rule” precluded inquiry into the constitutional defects alleged by plaintiffs, even though the legislative journals and stipulated facts showed conclusively that the bill signed by the Governor had not been passed by the legislature. We hold that when the official legislative journals, testimony by the presiding officers of both houses, and stipulations of the attorney general acting in his official capacity conclusively show clerical error in the enrolled bill, an exception to the enrolled bill rule applies.
The court opined that for purposes of the “enrolled bill rule,” the court will look to the Senate Journals for the most reliable record.
The enrolled bill rule provides that the “enrolled statute,” as authenticated by the presiding officers of each house, signed by the governor (or certified passed over gubernatorial veto), and deposited in the secretary of state’s office, is precisely the same as and a “conclusive record” of the statute that was enacted by the legislators. City of Houston v. Allred, 123 Tex. 334, 347–48, 71 S.W.2d 251, 257 (1934)Jackson v. Walker, 121 Tex. 303, 307, 49 S.W.2d 693, 694 (1932)Nueces County v. King, 350 S.W.2d 385, 387 (Tex.Civ.App.—San Antonio 1961, writ ref’d)Ellison v. Texas Liquor Control Board, 154 S.W.2d 322, 326 (Tex.Civ.App.—Galveston 1941, writ ref’d). Under the strict enrolled bill rule, the House and Senate Journals are not more reliable records of what occurred than the enrolled bill, and no extrinsic evidence may be considered to contradict the enrolled version of the billNueces County v. King, 350 S.W.2d at 387; Ellison, 154 S.W.2d at 326.
In other words, extrinsic evidence, such as YouTube livestreams, will not be looked at. Which makes things very interesting, as it seems that the Texas Senate modified the date on the enrolled bill from 6/26 to 6/25…

The court stresses that the enrolled bill rule may not make much practical sense:

The enrolled bill rule is contrary to modern legal thinking, which does not favor conclusive presumptions that may produce results which do not accord with fact. 1 N. Singer, Sutherland Statutory Construction § 15.03, at 610 (1985 rev. Sands 4th ed.). While the variety of state constitutional provisions and procedures make generalization difficult, the present tendency favors giving the enrolled version only prima facie presumptive validity, and a majority of states recognize exceptions to the enrolled bill rule. Id., § 15.02, at 606–607.

The court places a very high threshold to determine that a bill is not valid–basically everyone has to agree.

We therefore recognize as a narrow exception to the enrolled bill rule that when the official legislative journals, undisputed testimony by the presiding officers of both houses, and stipulations by the attorney general acting in his official capacity conclusively show the enrolled bill signed by the governor was not the bill passed by the legislature, the law is not constitutionally enacted. When the official legislative journals, presiding officers and attorney general all concur that the enrolled bill is not the bill passed by the legislature, the exception applies as a matter of law.

And here is the 1989 Texas AG opinion on point, stressing that the AG would not look to parol (extrinsic) evidence:

The enrolled bill rule prevents us from looking to parol evidence to prove that House Bill 2566 did not pass the legislature in the form approved by the Governor. We cannot rely on the conference committee report to show that section 7 of House Bill 2566 is effective on September 1, 1989

Update (8:30 a.m.):  As I wake up, I see that the Lt. Gov would not certify that the bill was properly enrolled so the issue is moot.

Lt. Gov. David Dewhurst returned to the Senate floor at 3:01 a.m., banged the gavel and announced that, “regrettably, the constitutional time expired” on the special session.

Senate Bill 5 cannot be signed because it passed after midnight, he said.

After making his announcement, Dewhurst paused, then added: “It’s been fun, but, uh, see you soon.”

The crowds in the Capitol, loudly cheering early word that the bill had failed, let loose with another rousing cheer when told that it was official.

Speaking to reporters afterward, Dewhurst said he was furious about the night’s events.

“An unruly mob, using Occupy Wall Street tactics, disrupted the Senate from protecting unborn babies,” he said.

Dewhurst said SB5 passed 19-10, but with all the ruckus and noise, he couldn’t hear the proceedings, and now “I can’t sign the bill” so it can go to Gov. Rick Perry.

Senate Bill 5 did not pass in time and will not be sent to the governor, two Democratic senators said after senators of both parties met privately in a room off the Senate floor for almost an hour.

The time stamp showing the vote completed after midnight was a deciding factor.

“This will not become law,” said Sen. John Whitmire, D-Houston.

Much of the discussion was over how to word a statement on the vote in the official journal. Some senators wanted to list the vote total, others wanted to note the disruption, Whitmire said.

How to describe the bill in the journal would be important extrinsic evidence if this were to go to court.